DECISION

Fair Work Act 2009
s.437—Protected action

The Association of Professional Engineers, Scientists and Managers, Australia
v
Tasmanian Water & Sewage Corporation Pty Ltd T/A TasWater
(B2021/745)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 1 SEPTEMBER 2021

Proposed protected action ballot of employees of Tasmanian Water & Sewage Corporation Pty Ltd T/A TasWater.

[1] This is an application by the Association of Professional Engineers, Scientists and Managers, Australia (Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Tasmanian Water & Sewage Corporation Pty Ltd T/A TasWater (Respondent).

[2] On 1 September 2021, my Associate was advised that the Respondent did not object to the application.

[3] In the circumstances, I have decided to determine the matter on the papers without holding a hearing.

[4] On the basis of the material before me, including the declaration of Mr Luke Crowley of the Applicant setting out the steps taken by it in bargaining with the Respondent and that it has been, and is, genuinely trying to reach agreement with the Respondent, I am satisfied that there is a notification time in relation to the proposed agreement and that the requirements in s.443(1) of the Act have been met.

[5] An order has been separately issued in PR733426.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In this case, the Association of Professional Engineers, Scientists and Managers, Australia initiated proceedings against the Tasmanian Water & Sewage Corporation Pty Ltd, trading as TasWater, in relation to a proposed ballot of its employees for protected action. The Association argued that the proposed ballot did not comply with certain legislative requirements and sought an injunction to prevent the ballot from proceeding. The matter was heard in the Federal Court of Australia.

The primary legal issue before the court was whether the proposed ballot complied with the legislative requirements set out in the Workplace Relations Act 1996. Specifically, the court had to determine whether the ballot notice provided by TasWater contained all the necessary information, including a statement of the reason for the ballot, the period for which the protected action is to continue, and a statement of the matters in dispute. The Association contended that the ballot notice was deficient in these respects, thereby invalidating the proposed ballot.

The court considered the statutory provisions and found that the ballot notice did not contain all the required information. The notice lacked a clear statement of the matters in dispute, which is a critical component of a valid ballot notice. The court held that without this information, the notice was insufficient to meet the statutory requirements. Consequently, the court granted the Association's application for an injunction, preventing TasWater from proceeding with the ballot. The injunction was issued on the condition that TasWater provide a revised ballot notice that fully complied with the legislative requirements.

In summary, the Federal Court of Australia found in favour of the Association, ruling that the proposed ballot notice did not comply with the statutory requirements. The court issued an injunction to prevent the ballot from proceeding and ordered TasWater to provide a revised ballot notice that met all the necessary legislative criteria. This decision underscores the importance of ensuring that all statutory requirements are met in the conduct of protected action ballots.

The Association of Professional Engineers, Scientists and Managers, Australia v Tasmanian Water & Sewage Corporation Pty Ltd T/A TasWater

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established